Jersey Unreported Judgments

[2011]JRC009

royal court

(Samedi Division)

14^th January 2011

judgment

the deputy bailiff:

1.        On 13th December, 2010, I refused the applicants leave to appeal the decision of Judge Shaw who refused to set aside a default judgment obtained by the respondent against the applicants on 21st April, 2010.  The application for leave was determined ex parte pursuant to Rule 4(6) of the Royal Court (Appeals from Petty Debts Court) Rules 2004.  An opportunity for an oral hearing of the application for leave to appeal had been afforded to the applicants but they declined to take that opportunity.  The first date offered to the applicants was 19th November, but that was inconvenient because they indicated they were due to leave the Island on 14th October and would be unavailable until 8th January.  They indicated they had arranged to go to Spain until the New Year to look after their granddaughter while their daughter was in hospital. 

2.        In the circumstances, I indicated I would sit at 4.45pm on Wednesday 13^th October to receive their application for leave to appeal.  The Bailiff's Judicial Secretary received a response to the effect that they had an appointment with a planning officer, and in addition their papers were in England and would need to be re-read before they could put their case.  In the circumstances, they were advised that they should attend on 19^th November as previously arranged.  On 13^th October they wrote to the Bailiff's Judicial Secretary to indicate that they were leaving for England that evening and would not be attending on 19^th November.  Accordingly, the matter was dealt with on the papers and reasons for the refusal of leave have been given and circulated both to the applicants and the respondent. 

3.        I have now received a further approach from the applicants asking for reconsideration of the matter.  I consider that it is too late for any such reconsideration, and that I have no jurisdiction to reconsider the matter at this stage.  However in case that should be wrong, I have reconsidered what has been put before me and I maintain my refusal of leave to appeal.  My reasons are as follows. 

(i) Mediation Provision

4.        The applicants say that there is an error in the reasons given for the refusal of leave where I indicated that they had taken no steps to set aside the mediation.  In the course of considering whether the applicants had a reasonably arguable defence to the claim, I said:-

           "I have also noted that no steps were taken to reopen the mediation or set aside the settlement amount". 

The applicants indicate that they wrote to the Bailiff by letter dated 30^th March, 2010, seeking leave to appeal the Order of 26^th March, 2010, more detail of which appears below. 

5.        At the time of adjudicating on the application for leave to appeal, I do not believe that I was aware of this letter.  This was either because it was not part of the case papers which the applicants had filed, or because I overlooked it in the course of reviewing an application which was haphazardly put together.  I have therefore reviewed it now. 

6.        The letter of 30th March sought leave to appeal against an order which had not in fact been made.  The record shows that on 26th March, 2010, at a mediation and directions hearing pursuant to Rule 43 of the Petty Debts Court Rules 2004, the parties participated in a mediation hearing and consented to settle the action on terms that the defendants (applicants) would pay to the plaintiff (respondent) the sum of £1,500 in full and final settlement. 

7.        That mediation agreement was signed on behalf of the plaintiff and by both defendants.  The mediation was facilitated by Judge Wheeler, but of itself it gave rise to no orders.  The extent of the Judge's participation on the face of that record of the mediation and directions hearing is the following annotation:-

"Any sum due under the terms of this agreement must be paid within [7] days from the date hereof failing which the plaintiff may be entitled to make application to have the agreement enforced in the Petty Debts Court.  If no such application is made within the next twenty eight days the court will assume that the agreement has been ratified and the action will be cassé".

The effect of that endorsement therefore was that the defendants had to pay the sums in question within 7 days failing which the plaintiff could take further proceedings in the Petty Debts Court.  If no proceedings were taken within 28 days, the existing action would be struck from the court list. 

8.        In my judgment therefore there was nothing to appeal at that stage.  The parties had consented to settle the action and the mediation had been successful. 

9.        The applicants subsequently have asserted that they were misled at the time of that mediation, wrongly believing that their counterclaim in tort against the respondent was time-barred in England as well as in Jersey.  It would appear they were correct in their belief that the counterclaim was time-barred in Jersey, but as claims in tort in England are subject to a limitation period of 6 years from the date the course of action arose as opposed to 3 years in Jersey, it may be that they were not time-barred in England.  Judge Wheeler is an experienced litigator before the courts of this Island, and an experienced judge.  I have no doubt whatsoever that he was well aware of the different limitation periods in England and Jersey.  He also would have been conscious, as I have been, that the desire of the applicants to transfer the proceedings against them back to the English jurisdiction is not something which is technically possible.  The applicants would have had to apply for stay of the Jersey proceedings on the basis that there were other proceedings in England where the dispute could be better resolved, and no such application has ever been made. 

10.      Be all that as it may, the applicants failed to pay the agreed sum, and the respondent duly took action before the Petty Debts Court, summoning the applicants to appear on 21st April, 2010.  Had they appeared on that occasion, they could have then challenged the mediated settlement.  In fact they failed to appear and judgment was entered against them.  For all the reasons set out in my decision on 13th December, I do not consider that any application of that nature would have been successful.  Accordingly I do not think the applicants had any reasonable arguable defence to the claim.  It is correct that the applicants in fact took no steps to reopen the mediation or set aside the settlement amount in the sense that the right time to do so was on 21st April, 2010, but I do now recognise that they had written to the Bailiff on 30th March of that year. 

11.      I have read carefully the remaining contents of the communication dated 29th December, 2010, from the applicants.  There does seem to be a lack of appreciation on the part of the applicants that the Island of Jersey is a separate legal jurisdiction to that of the United Kingdom.  I do not think it is unfair to say that there also seems to be some lack of understanding that court dates are not fixed around the convenience of the applicants.  Finally I wish to add that there is a strong principle that legal proceedings must at some point come to an end.  Indeed that was one of the advantages of the mediation hearing, and there are strong policy reasons why the outcome of that mediation hearing should be respected. 

12.      I have therefore reconsidered the matter as requested.  I consider that I am functus officio and on that ground would have refused leave.  In any event, I consider that the refusal of leave when first made was the correct decision. 

13.      There is no provision for any further appeal and I do not give leave for the matter to go to the Privy Council.  In my view there is no human rights point to be taken here either. 

Authorities

Royal Court (Appeals from Petty Debts Court) Rules 2004.

Petty Debts Court Rules 2004.